Ingram Day Lumber Co. v. Joh

• Decision Date: 06 April 1914
• Docket Number: 16240
• Citation: 107 Miss. 43,64 So. 934
• Court: Mississippi Supreme Court
• Parties: INGRAM DAY LUMBER CO. v. LOUIS JOH

64 So. 934

107 Miss. 43

INGRAM DAY LUMBER CO. v. LOUIS JOH

No. 16240

Supreme Court of Mississippi

April 6, 1914

APPEAL from the circuit court of Harrison county, HON. J. H. NEVILL Judge.

Suit by Louis Joh against the Ingram Day Lumber Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Wells May & Sanders, attorneys for appellant.

Mize &amp Mize, attorneys for appellee.

The record in this case is lost.

OPINION

COOK, J.

The right of recovery in this case depends mainly upon the proposition that appellee was injured by the negligence of an incompetent fellow servant, and that the master retained in its service the incompetent servant after notice of his incompetency. To maintain this contention it was necessary for appellee, plaintiff below, to show (a) that his fellow servant was incompetent; (b) that the master knew, or should have known, that he was incompetent; (c) that the master failed to discharge the incompetent servant; (d) that appellant was injured because of the negligence of this servant.

Appellee was a blacksmith, and one Sam Gibson was his helper, or striker. It appears that appellee, about two months before the injury, complained to Mr. Cleghorn, who, it seems, was authorized to discharge Sam. He was asked to state what he said to Mr. Cleghorn, and his reply was: "I only told him that Sam was no helper, and that if he wanted the work done he would have to give me a man; I could not work and strike, too." "How many times did you complain about him?" "Constantly; I can't say how many times; numerous times." "You say that about two months before this injury occurred you complained to Mr. Cleghorn about him?" "Yes; from the time Sam started to help me I said that Sam was not worth a continental."

We gather from the entire record that Sam was a man of more than average physical strength, not quick-witted, but a little dull of understanding. There is nothing to show that he was careless or reckless. No effort was made to prove that he had a bad reputation, which would lead to the inference that he was a menace to those working with him. Appellee was doing the ordinary work of a blacksmith--cutting bolts--and Sam was wielding the sledge. It seems that, instead of striking straight down, Sam struck a glancing or "nudging" blow, which caused the sledge to slip off the object struck and come...